It has come to my attention that a former employee has filed suit against All About Toys claiming constructive discharge and that All About Toys allegedly violated Title VII of the Civil Rights Act of 1964.

To summarize the plaintiff’s concern, the production staff’s shift matrix was redesigned as a means of accommodating recent company growth. All staff members were included in this restructure that altered the days/shifts from the prior Monday through Friday model previously in use. The fundamental claim is that due to the inherent modification of the work schedule and the inclusion of an employee observed holy day, the employee could no longer meet the staffing expectation and deemed it necessary to resign based on perceived discrimination.

This memo shall serve to illustrate the employee’s allegations as well as interpret our risk and recommended course of action.

Constructive Discharge Definition: A discriminatory constructive discharge occurs when the employer discriminatorily creates working conditions that are so difficult, unpleasant, or intolerable that a reasonable person in the aggrieved person's position would feel compelled to resign. In other words, the aggrieved person is essentially forced to resign under circumstances where the resignation is tantamount to the employer's termination or discharge of the employee. (Appendix C EEO-MD-110. (2012). Retrieved from http://www.eeoc.gov/federal/directives/md110/appendixc.html)
Constructive discharge may be inclusive of many concerns including but not limited to outrageous acts by the employer, sexual harassment, threats and/or a continuous pattern of discriminatory harassment (race, religion, sex, age, etc). Essentially, any act that may create an unbearable work environment.
In this particular case, the allegations of religious discrimination should not be relevant as we did evaluate other options and deemed the staffing restructure for the production staff to be in the organizations best interest. It is felt that all personnel were given adequate notice and that the plaintiff’s peers have reported no additional or undue hardship based on the shift changes. In direct relationship to the definition, I do not feel as if the employee adequately alerted his supervisor of this perceived dire situation and thus ultimately forfeited his rights to protection under constructive discharge. It should also be noted that this employee’s file is void of any communication indicating interpersonal conflicts existed nor is there any mention of prior issues/concerns. To date, we have not been alerted of any other employee taking issue to the new staff schedule and thus this would indicated that the claim is unsupported by any tangible facts.
Recommendations:

In light of reviewing and interpreting the Civil Rights Act of 1964 specifically focusing on the two primary types of discrimination, disparate treatment and adverse impact. If an employee is treated differently simply based on his/her protected class it would be considered disparate treatment. This may be considered the most common type of discrimination in the workplace as it generally is more readily identified or apparent. In contrast, adverse impact may occur if/when the same expectations or standards are applied to all employees but the protected class may be more affected for one reason or another. I do not feel that the allegations presented to us fall under either of these formal headings based on the critical components absent from this case simply based on the lack of written notification or concern brought forth by the employee.

Also, please note that based on the constructive discharge laws, I believe that our best course of action shall be to deny any wrongdoing based on the precedent that has been set in a similar case as illustrated below:

Lawson vs State of Washington. Essentially, the court ruled that based on the fact that the plaintiff wasn’t reprimanded or disciplined based on his failure to comply with ceremonial requirements that this was not a case of constructive discharge and that the plaintiff voluntarily resigned. (Lawson v. State of Washington, 2002 DJDAR 7791, July 15, 2002)

In addition, “examples of some common religious accommodations include flexible scheduling, voluntary shift substitutions or swaps, job reassignments, and modifications to workplace policies or practices.” (Religious Discrimination. (2012). Retrieved from http://www.eeoc.gov/laws/types/religion.cfm)

In retrospect, I do not feel as if religious discrimination was in play in this situation and in our defense, we shouldn’t be liable for an issue we have no expressed knowledge about.

No “magic words” are required to place an employer on notice of an applicant’s or employee’s conflict between religious needs and a work requirement. To request an accommodation, an individual may use plain language and need not mention any particular terms such as “Title VII” or “religious accommodation.” However, the applicant or employee must provide enough information to make the employer aware that there exists a conflict between the individual’s religious practice or belief and a requirement for applying for or performing the job. (Section 12, Religious Discrimination. (2012). Retrieved from http://www.eeoc.gov/policy/docs/religion.html#_Toc203359519

Again, had the plaintiff asked for specific accommodations officially and in writing, I feel our situation would be viewed in an undesirable light. This requirement is illustrated as follows:

“Notify an appropriate representative of the employer, in writing, that a working condition exists that the employee believes is objectively so difficult or unpleasant that the employee feels compelled to resign or intends to resign.” (23-1502 Constructive discharge. (n.d.). Retrieved from http://www.azleg.state.az.us/ars/23/01502.htm)

I feel we could have potentially offered variations to the plaintiff’s schedule to better suit his religious needs but in the same token would need to be cautious of not infringing on the seniority rights of our more senior employees based on the following inclusion as noted in the Civil Rights Act of 1964.

Seniority Rights. Undue hardship would also be shown where a variance from a bona fide seniority system is necessary in order to accommodate an employee's religious practices when doing so would deny another employee his or her job or shift preference guaranteed by that system. Hardison, supra, 432 U.S. at 80. Arrangements for voluntary substitutes and swaps (see paragraph (d)(1)(i) of this section) do not constitute an undue hardship to the extent the arrangements do not violate a bona fide seniority system. Nothing in the Statute or these Guidelines precludes an employer and a union from including arrangements for voluntary substitutes and swaps as part of a collective bargaining agreement. (Code of Federal Regulations. (2012). Retrieved from http://www.gpo.gov/fdsys/pkg/CFR-2011-title29-vol4/xml/CFR-2011-title29-vol4-part1605.xml)

Future recommendations:

In light of this complex allegation and the surrounding employment laws (specifically Title VII of the Civil Rights Act of 1964), I would make the following recommendations;

1. Reevaluate the current Human Resource and department level practices to ensure that we are meeting the requirements Title VII of the Civil Rights Act of 1964 and that all relevant policies and procedures support the ultimate goal of fair hiring and employment practices.

2. Ensure that all employees holding a leadership and/or management position complete yearly competency training surrounding employment laws in the interest of maintaining compliancy and minimizing our opportunities for risk. If there are any outstanding questions or concerns, it shall be expected that our Human Resources and/or legal team be consulted for guidance.

3. In specific response to the recent allegation, require that all managers consult the Human Resource Director prior to communicating and/or implementing a department-wide staffing matrix redesign. This will ensure that all parties and potential vulnerabilities are identified and handled appropriately. I would also advise that all planning sessions be inclusive of official team representatives and documented in the minutes. Last but not least, I would encourage all managers to draft and submit certified letters to each employee clearly indicating the forthcoming changes and offering a strict timeframe in which they can respond with unaddressed concerns or forecasted impact not yet recognized. This step essentially supports adequate and sufficient communication while also ensuring the execution of change.

Respectfully submitted,

Cody Van
Division Manager

References

(23-1502 Constructive discharge. (n.d.). Retrieved from http://www.azleg.state.az.us/ars/23/01502.htm)

Appendix C EEO-MD-110. (2012). Retrieved from http://www.eeoc.gov/federal/directives/md110/appendixc.html)

Code of Federal Regulations. (2012). Retrieved from http://www.gpo.gov/fdsys/pkg/CFR-2011-title29-vol4/xml/CFR-2011-title29-vol4-part1605.xml)

Lawson v. State of Washington, 2002 DJDAR 7791, July 15, 2002)

(Section 12, Religious Discrimination. (2012). Retrieved from http://www.eeoc.gov/policy/docs/religion.html#_Toc203359519